Cooper v. Henslee

• Decision Date: 07 April 1975
• Docket Number: No. 74--102,74--102
• Citation: 257 Ark. 963,522 S.W.2d 391
• Court: Arkansas Supreme Court
• Parties: Dr. Grant COOPER and G. Robert Ross et al., Appellants, v. Frank B. HENSLEE et al., Appellees, Lee A. Munson, Intervenor-Appellee.

Page 391

522 S.W.2d 391

257 Ark. 963

Dr. Grant COOPER and G. Robert Ross et al., Appellants, v. Frank B. HENSLEE et al., Appellees Lee A. Munson, Intervenor-Appellee.

No. 74--102.

Supreme Court of Arkansas.

April 7, 1975.

Rehearing Denied June 2, 1975.

Morton Gitelman, Fayetteville, Walker, Kaplan & Mays, Phillip E. Kaplan and John M. Bilheimer, Little Rock, Ray Trammell, Fayetteville, for appellants.

Givens & Buzbee, Tom Tanner, Deputy Prosecuting Atty., Little Rock, for intervenor-appellee.

THOMAS HARPER, Special Associate Justice:

This case is here on appeal from a decree of the Pulaski County Chancery Court. Appellees Frank B. Henslee and twenty-two other members of the Arkansas General Assembly filed their complaint in that Court against appellant Dr. Grant Cooper, Chancellor C. Robert Ross of the University of Arkansas at Little Rock (UALR) and the University's Board of Trustees (collectively referred to as Ross), and Mrs. Nancy Hall, State Treasurer, seeking to enjoin Mrs. Hall and Ross from disbursing any state funds for the payment of any salary to appellant Cooper, an assistant professor of history at UALR, and seeking a mandatory injunction ordering Ross to terminate appellant Cooper's employment in any capacity at UALR.

Appellees alleged that appellant Cooper had (1) violated the provisions of Section 1 of the Acts of Arkansas of 1941 (Ark.Stats. § 41--4111) and (2) that because Cooper was an avowed member of the Progressive Labor Party (PLP), an affiliate of the Communist Party, he was ineligible for State employment because of the provisions of Section 3(c) of said Act (Ark.Stats. § 41--4113(c)).

After preliminary pleadings and procedure not particularly relevant here, during which appellees abandoned their prayer for the mandatory injunction to terminate Cooper's employment, the issues were narrowed to (1) whether the trial court had jurisdiction to grant the relief sought and (2) whether these statutes are constitutionally valid.

Appellants Ross aligned themselves with appellant Cooper on the constitutional issues. The prosecuting attorney of Pulaski County, by an intervention, aligned himself with the appellees and further sought a declaratory judgment, asking the lower Court to declare that the involved statutes are constitutional.

After the issues were drawn the cause was heard by the trial court on oral evidence, following which a decree was entered finding both statutes to be constitutional, that appellant Cooper had violated Section 1 of Act 292 of 1941 (Ark.Stats. § 41--4111) and was a member of PLP, 'a communistic organization', which, as well as Cooper, believes in the necessity of the violent overthrow of the governments of Arkansas and the United States, that Cooper teaches from a communistic viewpoint, and that Cooper's membership in PLP renders him ineligible for employment by the State of Arkansas. On these findings the lower Court dismissed the State Treasurer as a party to the action and enjoined the Chancellor of UALR and its trustees from paying appellant Cooper any salary from public funds in his capacity as an assistant professor at UALR. The decree, except to the extent of the findings noted above, did not enter the declaratory judgment sought by the intervening prosecuting attorney.

From that decree, appellants Cooper, Ross and the Trustees have appealed to this Court.

Appellant Cooper mainly contends (1) the Chancery Court lacked jurisdiction to grant the injunction and (2) that the statutes involved are unconstitutional because Ark.Stats. § 41--4113(c) is a bill of attainder and violates the First and Fourteenth Amendments of the Commission of the United States, and (3) that both statutes are unconstitutional on their face and unconstitutional as applied to appellant Cooper. The appellants Ross generally adopt these contentions except as to jurisdiction.

Ark.Stats. § 41--4111 reads:

'Subversive activities defined and prohibited.--(a) It shall be unlawful for any person; (1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government; (2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence; (3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof. (b) For the purposes of this section, the term 'government in the United States' means the government of the United States, or the government of this state. (Acts 1941, No. 292, § 1, p. 754.)'

Ark.Stats. § 41--4113 in its entirety reads:

'41--4113. Penalty for subversive activities--Ineligibility for employment.--(a) Any person who violates any of the provisions of this act shall be deemed guilty of a felony and, upon conviction thereof, be fined not more than ten thousand dollars ($10,000) or imprisoned for not more than ten (10) years, or both such fine and imprisonment. (b) No person convicted of violating any of the provisions of this act (§§ 41--4111--41--4113) shall, during the five years next following his conviction, be eligible for employment by the State of Arkansas, or by any department or agency thereof. (c) No person who is a member of a Nazi, Fascist or Communist society, or any organization affiliated with such societies, shall be eligible for employment by the State of Arkansas, or by any department, agency, institution, or municipality thereof.'

Subsection (c), supra, is that portion of this section under attack here.

The facts are not in dispute. At the time this action was commenced and tried below, appellant was employed by the State of Arkansas as a member of the faculty of UALR. He admitted he was a member of the PLP, that he espoused its aims and principles, which included advocacy of revolutionary change of the government of the United States, by violence if necessary, which change is regarded as inevitable, although not within any specific time, except in the 'future'. He admitted that he advocated these principles to his students, and that he taught from a communistic point of view.

We find it necessary to discuss only two of the issues raised by appellants.

Appellees' complaint, as amended to eliminate the prayer for mandatory injunction, states a cause of action under the 'illegal exaction' section of the Arkansas Constitution (Article 16, Section 13). It has long been held a court of equity has jurisdiction to enjoin payment of public funds in violation of law. Revis v. Harris, 217 Ark. 25, 228 S.W.2d 624 (1950); Rose v. Brickhouse, 182 Ark. 1105, 34 S.W.2d 472 (1931); Sitton v. Burnett, 216 Ark. 574, 226 S.W.2d 544 (1950); Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963); Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S.W.2d 46 (1967).

It should be kept in mind that while the trial court found Section 41--4111 was constitutional and that appellant Cooper had violated its provisions, nevertheless there was no finding he had been convicted for such violation, and the record shows no conviction. The only relief granted appellees in the decree was to enjoin appellants Ross and the Trustees from paying any State funds to Cooper because of his party membership. Accordingly, we do not find it necessary to consider the question of the trial court's jurisdiction to construe Section 41--4111, but only whether it had jurisdiction to grant this injunctive relief.

By applying the provisions of § 41--4113(c) to the uncontroverted proof in this case, payment of salary to the appellant Cooper would be an illegal exaction if § 41--4113(c) can withstand constitutional scrutiny.

After a careful consideration of the decisions of the United States Supreme Court construing state statutes of similar, if not identical, purposes we conclude that Ark.Stats.Ann. § 41--4113(c) must be declared unconstitutional on its face as violative of the First Amendment to the United States Constitution.

In United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967), the U.S. Supreme Court held unconstitutional that portion of the Subversive Activities Control Act of 1950 which attempted to bar from any employment in any defense facility a person who was a member of a communist-action organization. The statute in that case was not dissimilar to 41--4113(c) in that it prevented membership and employment without regard to the relationship between the two. Chief Justice Warren, speaking for the Court, stated the problems caused by overbreadth at page 265--266 of Vol. 389 U.S. at page 424 of 88 S.Ct.:

'(12--16) It has become axiomatic that '(P)recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); see Aptheker v. Secretary of State, 378 U.S. 500, 512--513, 84 S.Ct. 1659, 1667, 12 L.Ed.2d 992; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). Such precision is notably lacking in § 5(a)(1)(D). That statute casts its net across a broad range of associational activities, indiscriminately trapping membership which can be constitutionally punished and membership which cannot be so proscribed. It is made irrelevant to the statute's operation that an individual may be a passive or inactive member of a designated organization, that he may be unaware of the...